UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Office of the Clerk INFORMATION P ACKAGE FOR P RO S E A PPELLANTS (M ARCH 2007) This information packet has been prepared by the United States Court of Appeals for the Ninth Circuit to assist you in presenting your appeal to the Judges of this court. Please read ALL of the information carefully before you prepare your case. You must keep a copy of all documents you send to this court for your personal records. Your appeal has been assigned a Court of Appeals docket number. You must include this number on all of the correspondence you send to this court and to the other side. If you move or your mailing address changes, you must notify this court in writing immediately. If you do not, you could miss important papers from this court notifying you of deadlines or decisions. If you do not notify us of your address changes and you miss a filing deadline as a result, your appeal could be dismissed without further notice. When filing documents, you must use paper and ink that will be legible when they arrive here for filing. Therefore, do not use tissue paper. If we can’t read the documents, they will not be processed. Revised March 2007 Your Appeal – A Checklist American LegalNet, Inc. www.FormsWorkflow.com _____ Court Clerk assigns you a docket number and sends you this package of information. You must include this docket number on anything you send to the Court!! In this package, you will find: ___ A Time Schedule Order - This tells you when certain papers are due. It is VERY important. ___ A Sample Certificate of Service. You MUST send a copy of ALL documents that you file with this court to counsel for the opponent, if any, and you must include a statement to this court telling us that you did so. You may duplicate this form and fill it out and send it with EACH document you file with this court. ___ An Informal Brief Form. Please note that there is a separate version of this brief form for immigration cases! _____ You must notify the Court in writing of any change of address. 9th Cir. R. 46-3. _____ You must pay your filing fee of $455 (for appeals from district courts). If you cannot pay your fee and want to ask that it be waived, you must file a motion to proceed in forma pauperis. If your motion is denied and you do not pay the fees, your appeal will be dismissed. _____ You must file your opening brief by the date stated on the time schedule order. _____ If you want to file a reply to your opponent’s brief, you must do that within 14 days of the date they served you with the brief. _____ If you are an appellant in an appeal from an action filed pursuant to 28 U.S.C. § 2254 or § 2255, you MUST first obtain a certificate of appealability regarding any issues you want to raise in your brief. If the district court has denied a certificate of appealability, you must seek a certificate from this court. See 9th Cir. R. 22-1. See page 5 of this handout for more details. _____ Once all the briefs are filed, the case will be considered by a panel of three Judges. Unless one or more of the Judges requests that oral argument be heard, your case will be submitted on the briefs. 2 American LegalNet, Inc. www.FormsWorkflow.com See Fed. R. App. P. 34(a). _____ In some cases, the Judges may decide a case before the completion of briefing, but you will be given an opportunity to tell the court why the case should not be summarily decided before the filing of your opening brief. See 9th Cir. R. 3-6. _____ If they decide that argument would be beneficial to the Court, you will receive notice that your case has been calendared for argument. _____ When the Judges decide your case, you will receive a memorandum disposition or order. 3 American LegalNet, Inc. www.FormsWorkflow.com I. THE COURT OF APPEALS The Court of Appeals reviews final decisions of the U.S. District Court, U.S. Tax Court, Bankruptcy Appellate Panel (BAP) and certain federal agencies. The court looks at the district court or administrative record in the case and the briefs of the parties to see if there are any constitutional, legal, or factual mistakes. NO new evidence or testimony can be presented in this court. II. THE FEDERAL RULES You must follow the Federal Rules of Appellate Procedure (Fed. R. App. P.) and the Ninth Circuit Rules. Make sure you follow the actual language of the rules. The Federal Rules are available in most law libraries. If you would like a copy of the Ninth Circuit Rules, free of charge, please send a written request to the Clerk's office and one will be sent to you. Please include a return mailing label with your address on it with your request. They are also available on the court’s website, http://www.ca9.uscourts.gov/. III. PAYMENT OF FEES The docketing and filing fees for an appeal are paid in the BAP, district court or tax court when the notice of appeal is filed. If you cannot afford to pay the fees, you may: 1. File a motion to proceed without payment of fees. This motion is called a Motion to Proceed in forma pauperis. You must file this motion in this court together with a financial affidavit, including a statement by you swearing under penalty of perjury that you do not have enough money or other assets to pay the fees. You may use the Form affidavit provided as Form 4 of the Federal Rules of Appellate Procedure. 2. If this court determines that your appeal is without legal or factual merit, it may deny your motion whether or not you can afford to pay the fees. If the motion is denied, you MUST pay the fees. See Fed. R. App. P. 24. 3. If you do not pay your filing fees or file a motion to proceed in forma pauperis, your case will be dismissed. See 9th Cir. R. 42-1. 4. If your motion to proceed in forma pauperis is GRANTED, you do not need to pay the filing fees, unless you are a prisoner in a civil (non-habeas corpus) 4 American LegalNet, Inc. www.FormsWorkflow.com appeal, in which case you will be required to pay the entire $455 docketing and filing fees when funds exist in your prison account. See 28 U.S.C. § 1915(b). If you are incarcerated, the court will notify you of your obligations under this statute and will require you to complete and return an authorization form to allow prison officials to deduct the funds from your account on a monthly basis. In addition, all litigants proceeding in forma pauperis still have to pay for other expenses of their appeal. These include copying, mailing, or costs you may have to pay the other party if you lose the appeal. See Fed. R. App. P. 39. NOTE: If you were permitted to proceed in forma pauperis in the district court and that status has not been revoked, you need not seek such status in this court, whether or not you are incarcerated. See Fed. R. App. P. 24(a). You will still be obliged to pay the fees under 28 U.S.C. § 1915(b) in civil appeals if you are incarcerated. IV. CERTIFICATE OF APPEALABILITY In all appeals from proceedings filed pursuant to 28 U.S.C. § 2254 or § 2255, the petitioner must obtain a certificate of appealability (COA) in order to seek review in the Circuit Court. See Fed. R. App. P. 22(b). If the district court denies a COA as to all issues, you must request a COA from the court of appeals. See 9th Cir. R. 22-1. A timely notice of appeal will be considered as a request for a certificate of appealability in this Court. V. TRANSCRIPT DESIGNATION AND ORDERING FORM Whether or not you are incarcerated, if you want to quote matters that were discussed during district court hearings to support what you tell this court in your brief, you must order a transcript of the hearing and pay the court reporter to prepare the transcript (or file a motion for transcripts at government expense). You must fill out the transcript designation form and include the date of the hearing and the name of the reporter that reported the hearing. A copy of the designation MUST be sent to the reporter and to the district court, AND must be served on opposing counsel. The TIME SCHEDULE ORDER gives you the date by which you must designate the transcript. Forms are available from the district court clerk. 5 American LegalNet, Inc. www.FormsWorkflow.com You are not required to designate written pleadings or orders that were filed in the lower court unless you are appealing an order issued by the Bankruptcy Appellate Panel or a district court reviewing a bankruptcy court order. VI. TRANSCRIPTS AT GOVERNMENT EXPENSE In forma pauperis status in civil appeals does NOT automatically entitle you to transcripts at government expense, unless you are appealing from the denial of a petition filed pursuant to 28 U.S.C. § 2254 or § 2241. You must file a separate motion for transcripts in the district court. If the motion is denied, you can file the same motion in the Ninth Circuit. See 28 U.S.C. § 753(f). You may request transcripts at government expense only for hearings conducted in the district court in the proceeding that generated your appeal; the court will not authorize payment for production of transcripts of hearings that were held in other courts or other proceedings. VII. APPOINTMENT OF COUNSEL The situations in which the court may appoint counsel or request the services of volunteer counsel in civil appeals are VERY LIMITED. To request the court to appoint counsel, you should file a motion for the appointment of counsel stating reasons why counsel is necessary and why you cannot afford an attorney. Remember to serve counsel for the opposing party with a copy of the motion. In direct criminal appeals, if you have in forma pauperis status or can show that you are indigent, you are entitled to appointed counsel. However, you MUST ASK that counsel be appointed by filing a “Motion for Appointment of Counsel.” VIII. BRIEF Your appeal was assigned a court of appeals docket number. You must include this number on all motions, briefs or other correspondence in order to avoid delay or lost documents. The TIME SCHEDULE ORDER tells you when you must file particular papers. Your brief is the written argument of your appeal. You will file the first brief, called the Opening Brief. The other side is given a chance to file a brief answering your arguments. You will have an opportunity to reply to their brief. The TIME SCHEDULE ORDER will tell you when your Opening and Reply Briefs are due. Briefing in certain appeals may be expedited, giving shorter deadlines to both 6 American LegalNet, Inc. www.FormsWorkflow.com parties. See 9th Cir. R. 3-3 (appeals from the denial of preliminary injunctive relief). In general, briefs should include: (a) A statement of the facts of your case. (b) What the district court or agency decided. (c) The issues you present on appeal. (d) The LEGAL arguments you wish to present. (e) A statement telling this court what you want us to do on appeal reverse the district court, remand the case back to the district court, or modify the district court opinion and WHY. (f) Your signature - all briefs must be signed by each pro se appellant. Please read Fed. R. App. P. 28 and 32 and 9th Cir. R. 28-1, 28-2, 28-4, 32-1, 32-3 and 32-5 for the exact requirements of the brief. You must file the original and 7 copies of your briefs with the court. See 9th Cir. R. 31-1. You must also send 2 copies of your brief to counsel for EACH opposing party and you must file a certificate of service with each copy as well. NOTE: Because you are appearing without the help of an attorney, you may file the informal brief included in this package. If you choose instead to file your own brief, it must meet all of the requirements of the federal rules, and must include the certificate of compliance required by 9th Cir. R. 32-1. If it does not, we will ask you to correct it , which will delay the decision in your case. If you use the attached informal brief form, however, your opening and reply briefs need not comply with the technical requirements of the Rules. See 9th Cir. R. 28-1(b), 32-5. You may add additional pages to the form, up to a total of 40 double-spaced pages. NOTE: The court will DISMISS your appeal if you do not file your brief when it is due! NOTE: Your briefs are considered filed as of the date you mail them to the court if you use first class mail. See Fed. R. App. P. 25(a). This is NOT true for any other filings in this court unless you are incarcerated. See Fed. R. App. P. 25(c). 7 American LegalNet, Inc. www.FormsWorkflow.com X. EXTENSIONS OF TIME If you need an extension of time in which to file your brief, you may request one extension of no more than 14 days by telephone. The telephone numbers for requesting telephonic extensions are: Appeals originating from the Central and Southern Districts of California (626) 229-7261 Appeals originating from Alaska, Idaho, Montana, Oregon and the Eastern and Western Districts of Washington (206) 553-0191 All other districts and agency cases (415) 355-7853 Once you receive a telephonic extension of time, no further extension of time is available absent extraordinary circumstances. You must give the other party notice by telephone that you are requesting an extension BEFORE you call the court. See 9th Cir. R. 31-2.2(a). If you need more than a 14-day extension, or have already been granted one or more extensions to file the brief, you must file a written motion for extension of time in which to file your brief. This motion must be filed at least SEVEN calendar days before the due date for your brief. Your motion must meet the requirements of 9th Cir. R. 31-2.2(b). XI. MOTIONS Any motions filed while your appeal/petition is pending must clearly identify the relief sought and the legal grounds for such relief. You must file an original and 4 copies of any motion and you must serve a copy of the motion on all counsel for opposing parties and file a certificate of service saying you have done so. 9th Cir. R. 27-1. If you are requesting emergency relief you must FIRST call the Motions Unit of the Court at (415) 355-8020. The attorney on duty will help you figure out the best way to get your motion to the Court. Any motion for reconsideration or clarification of an order disposing of a motion or otherwise entered by a court staff, the Appellate Commissioner or Judges prior to the completion of briefing must be filed within 14 days (or 28 days if you are incarcerated and proceeding pro se). See 9th Cir. R. 27-7, 27-10. 8 American LegalNet, Inc. www.FormsWorkflow.com XII. PETITION FOR REHEARING If you think this court's final disposition on the merits of your case was wrong you may file a petition for rehearing in this court within 14 days of Entry of Judgment (or 45 days when it is a civil case and there is a Federal participant). See Fed. R. App. P. 35 and 40; 9th Cir. R. 35 and 40. Unless you filed an informal opening brief on one of the forms provided with this packet, your petition for rehearing must comply with the technical form requirements of Fed. R. App. P. 32. See 9th Cir. R. 32-5, 40-1. You must present new facts or legal bases not already presented in your brief. After this court either denies your timely petition for rehearing or issues a new judgment upon rehearing in your case, you may file a petition for writ of certiorari in the United States Supreme Court. If you do not file a petition for rehearing in this Court, you may instead file a petition for a writ of certiorari in the United States Supreme Court. (See the Supreme Court Rules for details on how to proceed in the Supreme Court.) Remember that you must have a LEGAL basis to support your belief that this court's final decision was incorrect; it is not enough to simply disagree with the outcome. 9 American LegalNet, Inc. www.FormsWorkflow.com UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________ Appellant/Petitioner vs. CASE NO. _____________________ _____________________________________ Appellee/Respondent APPELLANT’S INFORMAL BRIEF 1. Jurisdiction a. Timeliness of Appeal or Petition: (I) (ii) Date of service of any motion made after judgment (other than for fees and costs): __________________________ (iii) Date of entry of order deciding motion ____________________ (iv) Date notice of appeal filed _____________________ (v) b. Date of entry of judgment or order of lower court: ____________________________________ For prisoners, date you gave notice of appeal to prison authorities ______________________________ IF POSSIBLE, PLEASE ATTACH ONE COPY OF EACH OF THE FOLLOWING: 1. 2. 3. The order from which you are appealing The district court’s entry of judgment The district court docket sheet American LegalNet, Inc. www.FormsWorkflow.com Page 2 Case No. ______________ 2. What are the facts of your case? Case No. _____________ American LegalNet, Inc. www.FormsWorkflow.com Page 3 3. What did you ask the district court to do (for example, award damages, give injunctive relief, etc.)? 4. State the claim or claims you raised at the district court. 5. What issues are you raising on appeal? Case No. ______________ 6. Did you present all these issues to the district court? American LegalNet, Inc. www.FormsWorkflow.com Page 4 _______________ If not, why? Yes/No 7. What law supports these issues on appeal? (You may, but need not, refer to cases and statutes.) Case No. ______________ 8. Do you have any other cases pending in this court? If so, give the name and docket number of each case. American LegalNet, Inc. www.FormsWorkflow.com Page 5 9. Have you filed any previous cases which have been decided by this court? If so, give the name and docket number of each case. 10. For prisoners, did you exhaust all administrative remedies for each claim prior to filling your complaint in the district court? _______________________________ DATE __________________________________ SIGNATURE __________________________________ ADDRESS American LegalNet, Inc. www.FormsWorkflow.com Page 6 CERTIFICATE OF SERVICE Case Name: ____________________ v. __________________________ Case No.: _____________ IMPORTANT: You must send a copy of ALL documents filed with the court and any attachments to counsel for ALL parties in this case. You must also file a certificate of service with this court telling us that you have done so. You may use this certificate of service as a master copy, fill in the title of the document you are filing and attach it at the back of each filing with the court. Please list below the names and addresses of the parties who were sent a copy of your document and the dates on which they were served. Be sure to sign the statement below. You must attach a copy of the certificate of service to each of the copies and the copy you file with the court. I certify that a copy of the _____________________________ (Name of document you are filing, i.e., opening brief, motion, etc.) and any attachments was served, either in person or by mail, on the persons listed below. _________________________ Signature Notary NOT required Name Address Date Served American LegalNet, Inc. www.FormsWorkflow.com